OLATUNDE'S LAW NOTES

Friday, January 25, 2013

STATUTORY INTERPRETATION -
SUMMARISED ESSAY

There
are two essays on statutory interpretation. The "Main Essay" is more
detailed while the "Summarised Essay" is concise but did not leave
out the key issues. This is the kind of skill you need to develop while
preparing for your examinations. I will advise you to read the two and compare.

INTRODUCTION

Statutes
historically comprised a small portion of the law in the English legal system.
Until 1960, it was felt that judges often share an altitude of mistrust or even
fear of statute law. One attempt was to interpret the statutes in a narrow and
literal form, thus ensuring the scope of the statute was kept as narrow as
possible. The situation has now change, commentators now talk of purposive
approach to interpretation. There are problems in drafting statutes for
example, in rationalising the offence of burglary under the Theft Act 1968, a
person is guilty of burglary when he or she enters a ‘building’ as a
trespasser, in order to commit theft or certain other offences. The word
‘building’ has subsequently been interpreted by the courts at various times as
being a houseboat, a caravan and even a large commercial refrigerator in
addition to houses, warehouses factories or shop. A number of factors such as
refrain from using certain words, broad terms with wide meaning are often used,
changes in the meaning of statutory expression deliberate uncertainty for some
contentious political issues, inadequate use of words, printing errors and
drafting errors may cause doubt in interpreting a statutory provision. In interpreting
statutes the

The
general methods of statutory interpretation are not regulated by parliament,
but have been developed by the Judges. The Interpretation Act 1978 does not
provide notes for interpretation but simply provides standard definitions of common
provision. In the name of judicial independence and keeping faith to the law
alone, many judges have preferred strictly literal approach and have denied the
need to consider policy matters. In Pepper (Inspector of Taxes) v Hart (1993) AC 591the
House of Lords departed from the long established practice that prohibited
reference to Hansard (the record of debates in Parliament).

Basically
there are three approaches to statutory interpretation. These are the Literal,
Golden and Mischief Rule. A general purposive approach is also operative – each
rule originated in different stage of legal history and these are not really
‘rules’ but approaches to interpretation. Most recently Sir Rupert Cross has
suggested that the English approach involves a progressive analysis rather than
a choice among alternative rules. The Judge first consider the ordinary meaning
of words in general context of statute then moves in to consider other
possibilities where ordinary meanings leads to absurd result. This is known as
the unified contextual approach and is supported by dicta in the House of Lord
decisions. In case of doubt or difficulty judges often say it is necessary to
discover the ‘intention of the parliament’ (this is the purposive approach)

THE LITERAL RULE

The
literal rule states that the words used in statute must be given their plain,
ordinary or literal meaning. The literal rule is the most clearly restrictive
of the ‘rules’ it is in a sense conservative. It is also a kind of professional
politics reflecting the historical desire of the judges to defend common law
against encroachment. Sometimes it clearly seems that the judges want to show
that Parliament creates stupidities in the law when it over legislates. Thus in
1884 Lord Bramnwell said that if Parliament created such absurdities then it
was the job of the Parliament to alter the words and not the courts. In Whitely v Chappel
(1868) 1 WLR 565 - the statute made it an offence for anyone during
election to impersonate another person who was entitled to vote. The defendant
impersonated a dead person and the court found him not guilty since it used the
narrow literal rule because a dead person was not entitled to vote. Also in R v Harris (1836) the
statute makes it an offence to stab, cut or wound another person. Harris bit
off his friends’ nose in a fight and the policeman’s finger. She was not guilty
as the teeth were not considered a weapon. In Griffith v Secretary of State for Environment
(1983) 2 WLR 172) the legislation gave six weeks to appeal against
Secretary of State’s refusal to grant planning permission. The refusal of
plaintiff’s request was not conveyed to him. The House of Lords held that the
correct date was the moment a civil servant had date-stamped the decision even
though the letter was never sent, and the plaintiff did not know of the
decision. The Literal Rules implies that it must be
applied even if the result is absurd.

THE GOLDEN RULE

Sometimes
you may find the golden rule expressed as Lord Wensleydale’s golden rule. In
essence the rule states that literal approach should be followed until it
produces absurdity. The controversial aspect of the rule is the unresolved
questions – whether it could only apply where words were ambiguous or whether
it could only apply where meaning were clear but absurd. There are other
problems with absurd such as does it mean inconsistent with other provisions in
the same act or absurd for other reason. The 1969 Law Commission said that the
rule provides no clear means to text absurdity and did not favour it.

THE MISCHIEF RULE

The
Mischief rule approach intends to find the cure what the common law before the
making of the act, the mischief and defect for which the common law did not
provide, and the remedy the parliament has resolved and appointed to cure the
disease of the commonwealth. The office of the judge is always to make such
construction as shall suppress the mischief, and advance the remedy, and to
suppress subtle inventions and evasions for continuance of the mischief, and
pro private commodo, and to add forces and life to the cure and remedy
according to the true makers of the Act, pro bono publico. The rule is rule is
the oldest of the rules dating from a time when the judges had much influence
over the contents of the act and where the position of the parliament was not
as powerful as it is today. The mischief rule does not allow the court to
re-write the Act. Smith v Hughes (1960) 2 All ER 859) A prostitute
taping the window soliciting for customer was not contravening Street Offences
Act 1959. The rule was however considered outdated in view of the fact that it
assume that statute is a subsidiary or supplement to the common law, where in
modern conditions, many statutes make a fresh point of departure.

PURPOSIVE

The purposive approach
encourages the judge to look for the spirit of the act and to read words into
or out of the act when this is necessary. There is no need to wait for
absurdity before the judge begins to operate in this way and no need to
consider existing common law. This approach is sometime criticised as an
attempt by the court to usurp the power of the parliament.

This
approach calls for the Judge must give effect to the (grammatical and) ordinary
or where appropriate the technical meaning of words in the general context of
the statutes. If the judge considers the application of words in their ordinary
sense would produce a result which is contrary to the purpose of the status, he
may apply them in any secondary meaning which they are capable of bearing. The
judge may read up words which he considers to be necessary implied but he has a
limited power to add, to alter or ignore statutory words in order to prevent a
provision from being unintelligible or absurd or totally unreasonable,
unworkable, and so totally irreconcilable with the rest of the state. In apply
the above rules the judge may resort to certain aids to construction and
presumption. The Judge must interpret a status as to give effect directly
applicable European law. This approach may be seen as combination of purposive approach
to interpretation and changing constitutional position in light of the UK’s
entry into the EU and the advent of Human Rights Act.

EFFECT OF EC

The
accession of the United Kingdom to the European Communities Act 1972 has
radically altered the standing of parliamentary sovereignty. All UK legislation
must be interpreted to avoid conflict with European Law. The Human Rights Act
presents a new chapter to construe legislation as to make it as far as possible
in line with the HRA, if not to declare it as incompatible. The court may
merely issue a ‘declaration of incompatibility’ which gives rise to a power to
take remedial action. For example the House of Lords held that Youth Justice
and Criminal Evidence Act 1999 s.41 should be interpreted so that it is
compatible with article 6(1) Right to Fair Trial) even though a literal
interpretation would indicate that complainants must be protected in court from
questions concerning their sexual history when they alleged rape. In addition
the HRA gives the Court of Appeal the latitude to effective overruled its
decision which were decided before HRA came into effect Fitzpatrick v Sterling Housing Association HRA
was used to extend the right of same sex partners to inherit statutory tenancy
under the Rent Act 1977.

CONCLUSION

Many commentators are of
the view that there are no rigid rules to statutory interpretation but a
combination of approaches which judges uses in arriving at decisions. There
appear to be the collapse of the literal, the golden and mischief rule into one
since what could be referred to as the purposive or unified contextual approach
to interpretation. To arrive at proper meanings of words in a statute the judge
may look at dictionaries, the definition section of the Act (if any) and
previous cases decided on the meaning of similar words. Today it is more useful
that ‘the meaning of words used in any act must be found by reading the whole
of the Act in question.

There are other secondary
aids such as whole context of the Act; text of any delegated legislation under
the authority of the act of the parliament; Judicial precedents directly
binding upon the text to be applied or other relevant parts of the same statute
and Treaties binding in the UK by virtue of enabling act. Examples of
persuasive authority e.g. legal sources, Chandler v DPP (1964) AC at p. 791. Lord Reid
invoked the historical conditions of the passing of the Official Secret Acts,
1911 to support his interpretation of the Act. Usually only legal sources are
permissible and not textbooks. Government publications Pepper v Hart (1993) limited
recourse to Hansard, Interpretation Act since 1889 the more recent version
enacted in 1978.

There are two essays on statutory interpretation. The "Main Essay" is more detailed while the "Summarised Essay" is concise but did not leave out the key issues. This is the kind of skill you need to develop while preparing for your examinations. I will advise you to read the two and compare.

STATUTORY
INTERPRETATION -MAIN ESSAY

INTRODUCTION

Statutes
historically comprised a small portion of the law in the English legal system.
Joining living tradition, student experience activity being one of grasping
language, learning knowledge claims or statements and focussed on the Inns of
England. The rules of presumption on statutory interpretation adopted in
England owe their unique character to the changing constitutional balance
between King, Parliament and senior judges. Law making was a marginal activity
of parliament and consisted largely of private members bills on criminal matter
and enclosure law. Law was thought as the criminal matters and statutes as ‘marginal
adjustment to the reigning state of affairs (Atiyah – the Rise and Fall of
Freedom of Contract). The governing idea for the judiciary for many years was
that it was best to leave the common law alone and that statutes were not to be
passed unless absolute necessary and legislation was to be interpreted
strictly. Until 1960, it was felt that judges often share an altitude of
mistrust or even fear of statute law. One attempt was to interpret the statutes
in a narrow and literal form, thus ensuring the scope of the statute was kept
as narrow as possible. The situation has now change, commentators now talk of
purposive approach to interpretation and the age of literal interpretation may
have ended in the late 1960s. The Human Rights Act presents a new chapter to
construe legislation as to make it as far as possible in line with the Human Rights
Act (HRA), if not to declare it as incompatible. R v Harris the defendant bit the
nose of the victim, he was not held under the act because teeth were not
considered a dangerous weapon. Unified contextual approach, the Learning legal
rules is extremely valuable here; this is the core skill that first year
students need to grasp.

STATUTORY
INTERPRETATION IN THE ENGLISH LEGAL SYSTEM

The
largest transnational influence upon the English legal system has resulted from
the United Kingdom joining the European Community/European Union. Under the European
Communities Act (ECA) 1972 any United Kingdom enactment has effect
subject to existing enforceable community rights

Statutes
are fundamental sources of law.In
contrast to case law, the statute is both the source and the statement of the
law.There are problems in drafting
statutes for example, in rationalising the offence of burglary under the Theft Act 1968,
a person is guilty of burglary when he or she enters a ‘building’ as a
trespasser, in order to commit theft or certain other offences.The word ‘building’ has subsequently been
interpreted by the courts at various times as being a houseboat, a caravan and
even a large commercial refrigerator in addition to houses, warehouses
factories or shop. F. A. R. Bennion (1990) has identified a number of
factors that may cause doubt in interpreting a statutory provision as follows:

a)Ellipsis:
the drafter refraining from using certain words that be regards as implied
automatically

c)The
meaning of statutory expression may change over time – e.g. does family include
common law spouse, does father refers to biological or the social father

d)Deliberate
uncertainty.Drafters may deliberate use
ambiguous word e.g. where provision is politically contentious

e)Unforseeable
development

f)Inadequate
use of words

g)Printing
errors and drafting errors

APPROACHES TO
INTERPRETATION

The
general methods of statutory interpretation are not regulated by parliament,
but have been developed by the Judges. The Interpretation Act 1978 does not provide notes
for interpretation but simply provides standard definitions of common
provision. In the name of judicial independence and keeping faith to the law
alone, many judges have preferred strictly literal approach and have denied the
need to consider policy matters. In Pepper (Inspector of Taxes) v Hart (1993) AC 591
the House of Lords departed from the long established practice that prohibited
reference to Hansard (the record of debates in Parliament).T

THE RISE OF STATUTE
LAW

In
early times there were few statutes.The
bulk of the law was case law and statutes were of secondary importance. From
the Tudor period onwards the parliament became more and more independent and
the practice of law making by statute increase. Statutes did not become an
important source of law until the beginning of the nineteen century. At present
time, although there is a great deal of legislation, statute still forms a
comparatively small part of the law as a whole. Since the late 18th
Century the doctrine of parliamentary supremacy has been accepted. The idea of
Parliament as an absolutely sovereign legislature relies upon two
understandings:

a)That
no parliament can bind a future parliament or be bound by previous one

b)That
no Judge can condemn a law and refuse to apply it on the ground that it is
incompatible with the constitution or the fundamental principles of the common
law.That would be a usurpation of the
legislative function by the Judiciary.

The
Judiciary will not simply apply statutes.They have adopted methods of relating to statutes that have preserved
the power of the judiciary as the oracle of the law

APPROACHES
TO STATUTORY INTERPRETATION

There is a large discretion in how to interpret, and as a result is there such
a radical choice that the result of chaos of interpreting.Or can we make sense of the situation through
some process of rational reconstruction of what happens in practice? Bennion’s
statutory Interpretation (1997)‘Alas there is no golden rule.Nor is there mischief rule, or a literal
rule, or any other cure-all rule.Instead there are thousand and one interpretative criteria.Fortunately. Not all these present themselves
in any one case; but those that do yield factors that the interpreter must
figuratively weigh and balance

A PROCESS MODEL OF
UNDERSTANDING THE INTERPRETATION OF STATUTES

A process model incorporates the
constitutional position with an understanding of how certain ‘rules of
interpretation’ can be rationally connected.We shall examine the following:

The Basic Rules

a)There
are no limit upon the power of Parliament to make law

b)Judges
must always give effect to the intention of the parliament

c)Interpretation
should start with the presumption that one should apply to ordinary, ‘literal’
meaning of the words of Parliament has used

Solutions to the
problems

a)Look
for the ‘spirit of the Act’

b)Read
words ‘in context’

c)Use
as wide context as need be

There may be dangers
in these solutions e.g.

a)There
may be disagreement as the ‘spirit of the Act’

b)Widening
the context may solve some problems, but may also raise new ones on their place

c)The
judge is in danger of acting as a legislator, using Parliament’s words only as
a starting point

d)Parliament
complains that Judges are sabotaging its legislation by failing to use the
literal meaning of its words.

Approaches to
Statutory interpretation in English Law: and Outline

Basically
there are three approaches to statutory interpretation.These are theLiteral,
Golden and Mischief Rule.
A general purposive approach is also operative –each rule originated in different stage of
legal history and these are not really ‘rules’ but approaches to
interpretation. The ‘classic’ modern account of the role of these ‘rules’ was
given in 1938 by J. Willis in an article entitled ‘Statutory Interpretation in a
nutshell (16 Can Bar Rev 1). Most recently Sir Rupert Cross has suggested that the English
approach involves a progressive analysis rather than a choice among alternative
rules.The Judge first consider the
ordinary meaning of words in general context of statute then moves in to
consider other possibilities where ordinary meanings leads to absurd result.
This is known as the unified contextual approach and is supported by dicta in
the House of Lord decisions. In case of doubt or difficulty judges often say it
is necessary to discover the ‘intention of the parliament’ (this is the
purposive approach)

THE LITERAL RULE

The
literal rule states that the words used in statute must be given their plain,
ordinary or literal meaning. The literal rule encourages precision in drafting
and likely to produce result closest to the meaning intended by Parliament. It
avoids the danger of statutes being effectively re-written by judges.

Criticisms of the
Literal Rule

Judges
have excessively emphasised the literal meaning of statutory provisions without
giving due weight to their meaning in wider context. The literal rule is the
most clearly restrictive of the ‘rules’ it is in a sense conservative. It is
also a kind of professional politics reflecting the historical desire of the
judges to defend common law against encroachment. 1982 Lord Esher said in R v the Judge of
the City of London Court (19892) 1 QB 273that if the words a statutes were clear, they
must be followed even if the result is not sensible, and even if it is absurd
and unjust. Sometimes it clearly seems that the judges want to show that
Parliament creates stupidities in the law when it over legislates.Thus in 1884 Lord Bramnwell said that if
Parliament created such absurdities then it was the job of the Parliament to
alter the words and not the courts. In Whitelely v Chappel (1868) 1 WLR 565- statute made it an offence for anyone
during election to impersonate another person who was entitled to vote.The defendant impersonated a dead person and
the court found him not guilty since it used the narrow literal rule because a
dead person was not entitled to vote. Griffith v Secretary of State for Environment (1983) 2 WLR
172) the legislation gave six weeks to appeal against Secretary of
State’s refusal to grant planning permission.The plaintiff had not been informed of that decision. The House of Lords
held that the corrected date was the moment a civil servant had date-stamped
the decision even though the letter was never sent, and the plaintiff did not
know of the decision.The Literal Rules
implies that it must be applied even if the result is absurd, the judges
dislike the statute and interpretation may inflict hardship on those affected. R v Maginnis (1987)
1 All ER 907 the defendant who friend left drugs in his car was
convicted of unlawful possession of a controlled drug with intent to supply it
to another. In order to arrive at proper meanings of words in a statute the
judge may look at dictionaries, the definition section of the Act (if any) and
previous cases decided on the meaning of similar words. Today it is more useful
that ‘the meaning of words used in any act must be found by reading the whole
of the Act in question.

THE GOLDEN RULE

Sometimes
you may find the golden rule expressed as Lord Wensleydale’s golden rule. The
words of Parke B (who became Lord Wensleydale) in the case of Becke v Smith
(1836) 2 M&W 191 are
often quoted: It is a very useful rule in
the construction of statute to adhere to the ordinary meaning of the words
used, and to the grammatical construction, unless that is at variance with the
intention of the legislature to be collected from the statute itself, or leads
to any manifest absurdity or repugnance, in which case the language may be
varied or modified so as to avoid such inconvenience, but no further. This
interpretation was expressively adopted in the case of Mattison v Hart *1854) 15 CB 357. In
essence it states that literal approach should be followed until it produces
absurdity, In the USA it is often presented as the first of the rules. The
controversial aspect of the rule is the unresolved questions – whether it could
only apply where words were ambiguous or whether it could only apply where
meaning were clear but absurd. There are other problems with absurd such as
does it mean inconsistent with other provisions in the same act or absurd for
other reason.The 1969 Law Commission
said that the rule provides no clear means to text absurdity and did not favour
it.

THE MISCHIEF RULE

Opinion
of the Barons who decided Heydon’s Case (1584) 3Co Rep 7a -What was the common law before the making of
the act? What was the mischief and defect for which the common law did not
provide? What remedy the parliament has resolved and appointed to cure the
disease of the commonwealth? True reason for the remedy – The office of the
judge is always to make such construction as shall suppress the mischief, and
advance the remedy, and to suppress subtle inventions and evasions for
continuance of the mischief, and pro private commodo, and to add forces and
life to the cure and remedy according to the true makers of the Act, pro bono
publico.

The
rule is rule is the oldest of the rules dating from a time when the judges had
much influence over the contents of the act and where the position of the
parliament was not as powerful as it is today.. The mischief rule does not
allow the court to re-write the Act. Smith v Hughes (1960) 2 All ER 859; a prostitute
taping the window soliciting for customer was not contravening Street Offences
Act 1959

In
1969 the Law Commission commented on the Mischief Rule as follows- … a somewhat more satisfactory approach to
the interpretation of statutes, (but) it is somewhat outdated in its approach,
because it assumes that statute is a subsidiary or supplement to the common
law, whereas in modern conditions many statutes mark a fresh point of departure

THE RULES IN THEIR
HISTORICAL CINTEXT

For
most of the 20th century the Literal Rule has been most widely used.
The first step legal reasoning is to identify the relevant rule or principle
that is applicable to the factual situation. The cultural background of a
system is an important factor influencing the readiness of judges as to decide
the applicability of rules of interpretation. The English legal system has not
had either an extensive codification project nor seen a written constitution.
Those common law systems where a written constitution is enacted such as the
United States, particularly strategies for constitutional interpretation are
often develop which, albeit somewhat different in purpose do influence approach
to normal legislature. In both civil and common law system where there is a
written constitution, there is a tendency to enact statutes that establish only
general principles of law and delegate to various agencies the authority to
adopt more specific regulations consistent with those more fundamental statues.
There is always the argument that legislation out to be applied just as is its
written down. Adherence to literal approach is often justified on the grounds
of the separation of powers and democratic expectation

EVIDENCE BEYOND THE
STATUTE

The
Common law favours textualism, or the idea that the law is to be found by
analysing legal text (either reports of previous case or the appropriate
legislation). The traditional approach meant that courts were openly suspicious
of arguments that they ascertain the meaning of the statutory words through
using extrinsic source). Extrinsic source is a basic tension inherent in legal
reasoning in this area. Seaford Courts Estates Ltd v Asher (1950) Lord Denning
had argued that: ‘We sit here to find out the intention of Ministers and of Parliament
and carry it out, we do this better by filling in the gaps and making sense if
the enactment than by opening it up to destructive criticism. Viscount Simmonds
said it appears to me a naked usurpation of the legislative function under the
thin guise of interpretation .If a gap is discovered, the remedy lies in
amending the act

The
material that should be referred to could include whole context of the Act;
Text of any delegated legislation under the authority of the act of the
parliament; Judicial precedents directly binding upon the text to be applied or
other relevant parts of the same statute and Treaties binding in the UK by
virtue of enabling act. Examples of persuasive authority:

oHistorical
background – Chandler
v DPP (1964) AC at p. 791. Lord Reid invoked the historical
conditions of the passing of the Official Secret Acts, 1911 to support his
interpretation of the Act.Usually only
legal sources are permissible and not textbooks

oGovernment
publications – Reports of various law reform committees including Royal
Commissions, proceedings of other parliamentary committees (since 1975),
explanatory memoranda to bills since (1988) and since Pepper v Hart (1993) limited
recourse to Hansard

oInterpretation
Act since 1889 the more recent version enacted in 1978.The Interpretation Act provide more guidance
for judges

The
two attempts by Lord Scarman in 1980 to put legislature through Parliament in
order to provide the courts with a wider range of aids to interpret statutes
both failed

UNIFIED CONTEXTUAL
APPROACH

In
his leading short work on statutory interpretation Sir Rupert Cross (1976) third
edition set out the following procedures Judges should follow:

a)The
Judge must give effect to the (grammatical and) ordinary or where appropriate
the technical meaning of words in the general context of the statutes

b)If
the judge considers the application of words in their ordinary sense would
produce a result which is contrary to the purpose of the status, he may apply
them in any secondary meaning which they are capable of bearing

c)The
judge may read up words which he considers to be necessary implied but he has a
limited power to add, to alter or ignore statutory words in order to prevent a
provision from being unintelligible or absurd or totally unreasonable,
unworkable, and so totally irreconcilable with the rest of the state

d)In
apply the above rules the judge may resort to certain aids to construction and
presumptions

e)The
Judge must interpret a status as to give effect directly applicable European
law

This
approach may be seen as combination of purposive approach to interpretation and
changing constitutional position in light of the UK’s entry into the EU and the
advent of Human Rights Act.

PURPOSIVE APPROACH

The
purposive approach encourages the judge to look for the spirit of the act and
to read words into or out of the act when this is necessary.There is no need to wait for absurdity before
the judge begins to operate in this way and no need to consider existing common
law. A clear statement on this approach comes from Denning LJ in Seaford Court
Estates Ltd v Asher (1950) 2 All ER 1236 (see 6.3.1. above). Lord Denning’s Approach was severely criticised.Viscount Simmonds in Magor & St Mellons RDC v Newport Corporation (1952) AC
189 said in Denning LJ’s views are naked usurpation of the
legislative function. In 1980 Lord Scarman said in a lecture that ‘on-one’
would dare to choose the literal rather than a purposive construction’ of a
statute. Although judges frequently refer to the concept of purposive statutory
construction, this approach should be used carefully and in any case will often
produce the same result as literal interpretation. Mandla v Dowell Lee:A case study of differing interpretations. Courts
were sharply divided on the application of statute, the Race Act. In Mandla v Dowell
Lee, the Court of Appeal and House of Lords differed markedly not
only of the interpretation of the ‘ethnic’ in the context of Sikhs in Britain
but in their attitude to the legislation and to the activities of the
Commission for Racial Equality .

THE IMPACT OF MEMBERSHIP
OF THE EUROPEAN UNION - ‘EUROPEAN LEGAL
METHOD’

The
accession of the United Kingdom to the European Communities Act 1972 has
radically altered the standing of parliamentary sovereignty. All UK legislation
must be interpreted to avoid conflict with European Law. If there is
irreducible conflict European Union law must prevail. The first Judge to face
up to this was Lord Denning in H.P. Bulmer Ltd v J Bollinger SA (1974) 3 WLR 202 he
argued that the literal approach was inadequate when dealing with the Treaty or
Rome since the statute was so broadly worded. The treaty of Rome was meant to
be clarified by Secondary legislation. English judges need to more readily
adopt the interpretative strategies more common in the other civil law
countries of Europe, namely looking at the purpose and principle of such
legislation. In Buchanan
&Co Ltd v Babco Forwarding and
Shipping UK Ltd (1977) QB 208 Lord Denning specifically pointed out
that the European Court of Justice used a ‘schematic’ or ‘teleological’ system
of interpretation, looking at the design or purpose of the legislation and
quite readily filling in any gaps. Many writers claim to discern increased
evidence of a purposive approach in the English legal system of interpretation,
but some are more circumspect.

INTERPRETATION AND
HUMAN RIGHTS ACT 1998

Section 3(1),
the court may not disapply legislation. The court may merely issue a ‘declaration
of incompatibility’ which gives rise to a power to take remedial action. Will
this blur boundary between interpretation and amendment of status. R&A
(Complainant’s sexual history) sub nom R v Y. Sexual offence:
Complainant’s Sexual
History) [2001] 2 WLR 1546 – House of Lords held that Youth Justice
and Criminal Evidence Act 1999 s.41 should be interpreted so that it is
compatible with article 6(1) Right to Fair Trial) even though a literal
interpretation would indicate that complainants must be protected in court from
questions concerning their sexual history when they alleged rape.

In
addition the HRA gives the court of Appeal the latitude to effective overruled
its decision which were decided before HRA came into effect Fiztpatricj v
Sterling Housing Association HRA was used to extend the right of same sex
partners to inherit statutory tenancy under the Rent Act 1977. D v East Berkshire
Community NHS Trust (2004) in which the CA held that the decision of
HL in X (Minor) v Bedfordshire County Council
(1994) could not be maintained after the introduction of HRA. HL
approved the approach inKay v London Borough of Lambeth (2005). Where a
conflict between two decisions is the court will decide which one to follow, or
if a decision has been decided per incurrion, such decision would not be
followed.

Friday, January 18, 2013

LAW STUDENT’S
REVIEW SERIES

BY

OLATUNDE AFUWAPE

LAW OF TRUSTS

INTRODUCTION
TO THE LAW OF TRUSTS

INTRODUCTTION

The
term 'trust' describes a particular form (or forms) of property holding. Where
there is a trust, the legal title holder must apply the property for the
benefit of someone else unlike the standard absolute ownership where the owner
is free to use the property howsoever he wishes. The person holding the
property is a trustee and the person for whose benefit he holds it is the
beneficiary and the person who set up the trust is usually referred to as the
settlor. In a typical trust, the beneficiary has right against the trustee that
the property be applied solely for his benefits, he also have equitable title
to the trust property.

Trust could either be expressed (what the owner wanted), while other are imposed
by law irrespective of the property owner's wishes. These are resulting or
constructive trusts. For a long time English law had both the common law
applied by the king's courts and equity applied by the chancery court. These
two were merged in 1875.

Trusts are extremely versatile legal devise. Settlors may use them both to
provide for family members and to secure their commercial interest. The law
imposed trusts ti ensure a just division of the family home upon relationship
breakdown, to strip gains from wrongdoers, and to return misapplied property.
It is for this reason that trusts play such a central role in English law.

CERTAINTY

To create a valid express trust, the settlor must have intended to create a
trust, the trust property must be sufficiently certain and the beneficiaries
must have been adequately identified. These are know as the three certainties;
intention, subject matter and objects. The purpose of this is to enable the
court have adequate information. Trust is intentional and failed gift will not
be re-interpreted as trust. No trust will be created if the settlor intended
merely to impose some moral obligation on the trustee to use the property for
another's benefit. The intention must be legal obligations. The court in
establishing whether a settlor intended to create a trust would adopt objective
rather than subjective approach. Trust object and subject matter may be
uncertain in a variety of ways and to differing degrees. These could be either
inexact words (conceptual uncertainty) or not enough factual information
(evidential uncertainty).

In respect to certainty of subject matter, the general principle is that the
precise identity and location of the trust property, what parts are to go to
which beneficiaries must be clearly stated. There is however an exception with
homogeneous intangible property, where it is sufficient to identify the source
of the trust property from the proportion of that bulk which is to be held on
trust. Where a trust if x£ to each of my friend, the trust will succeed so long
as any one person can be found who falls within the defined class of
beneficiaries. However, where it is x£ to be shared among certain
beneficiaries, the trust will only succeed if it is possible to draw-up a
complete list of all those who falls within the defined class of beneficiaries.

Where a settlor creates a discretionary trust, the trust will success only if
it can be said of any given person that he is or he is not a members of the
class of beneficiaries. A discretionary trust will fail, even if its objects
are sufficiently certain, it is held to be administratively unworkable or
capricious. This is where the class is too big (administrative) and settlor reason
for choosing the beneficiaries (capriciousness.) It may be possible to cure
uncertainty of subject matter or objects by stipulating for a third party to
fix the problem (most useful of evidential uncertainty). If the settlor seeks
to make a self declaration of trust, then any uncertainty will result in him
continuing to hold the property absolutely, where the property is transferred
to a trust, then uncertainty of objects or subject will lead to the trustee
holding the property on trust for the settlor.

PURPOSE TRUST

Purpose trusts are set up to use property to promote a particular objective
rather than benefit certain individuals. However, the basic rule of English
trusts law is that trust must have beneficiaries, where there is no
beneficiaries it is not possible to create a purpose trust. This rule is known
as the beneficiary principle firmly established in Re Ebdacott (1960) Probition
applies only to purpose trust and not to powers for purpose (Re.
Douglas (1887). There are however a number of exceptions
to the beneficiary principle.

The most frequently cited explanation for the rules come from Marice v Bishop of
Durham, which ruled that for trust to be valid it must be capable of
being supervised by the courts to ensure that the trustees’ duties are enforced
and the settlor's intentions respected. This is based on the reasoning that A)
if a trust cannot be enforced it must fail; and b) it is only beneficiaries
that can enforce a trust.

ENFORCEMENT OF
TRUSTS

The general rule is that a settlor is divorced from the trust once it is
created and the trustees and the beneficiary are then left to enforce the
trust. There is a counter argument that if a settlor is still alive, he should
be able to enforce the trust in addition to other interested parties.

MUST TRUST BE ENFORCEABLE

There is need to find an enforcer to ensure that the trustees perform their
duty. It might be possible however for an honest settlor to enforce a purpose
trust to allow if from failure. The difficulty in finding a beneficiary to
enforces Sauders
v Vaulier right is one the things militating against enforcement of
purpose trusts.
Re. Bowes (£5,000 for planting shelter trees for Wemmegil Estate) the court
interpreted the owners of the estate as the beneficiary of the trust and gave
them the discretion to use the money as they saw fit. In re Andrew's Trusts, a
trust for children's education was interpreted to mean the general use of the childred
since their education has been provided for.

EXCEPTIONS TO
PURPOSE TRUSTS

Anomalous Purposes Trusts -
These trusts are created by accidents of legal history and they are:

a)Trusts
to look after or provide for certain animals - Re Dean (Trust for the
maintenance of testator horses and hounds

b)Trust
for the construction and or maintenance of graves and funeral monuments - Re Hooper

c)Trust for saying or private masses - Bourne v Keane.

A second exception is found in Re Denley's Trust Deed provided that the carrying
out of the purpose must benefit an individual in a way which is not to remote
or indirect; and it must be possible to identify all those who would benefit.

Other requirements of purpose trusts are that it must be defined with sufficient
certainty for the courts to be able to enforce it - Morice v Bishop of Durham; Re. Astor's
Settlement Trusts. Secondly, where the purpose is regarded as
capricious or unlawful a clearly defined purpose trust will fail e.g. Brown v
Burdett (1882), a trust to block up the rooms of a house for 20 years. Finally
purpose trust will fail if they do not satisfy the rule against perpetuities
(there must be time limit).

Thursday, November 29, 2012

Critical
Race Theory (CRT) grew up in America as a response to the failure of the
anti-discrimination laws to achieve any real sense of social advantage for the
black community. One of the foremost American CRT said black peoples struggle
is as old as the nation, making race and racism essential to the definition of
America as a nation. The very recognition of slavery was a compromise that
allowed the foundation of American Constitutional government (Bell 1995),
the drafting of the Independence Constitution in 1787 to include the
preservation of slavery to Hayes-Tilden Compromise of 1877 (between Republicans
and Democrats to elect Hayes in return to ending reconstruction in the south was
instituted to help improve the position of newly emancipated black slaves and the
end of military rule in the South with allow white racist to act unchecked).
From end of civil war until present a pattern has shown that any black advance
is effectively crushed by white backlash and historical racism means that black
rights will always be compromised to other economic and social interests.
Equality is stated in the law, but economic and social dispossession still
suffered renders these legal rights symbolic. Litigation engaged by National
Association for the Advancement of Colored People (NAACP) is accused
of becoming too fixated with symbolic advances without any serious
consideration to inequitable distribution of social and economic powers.Bell wants people to understand that American
is inherently racists. The failure of previous struggles rests upon a
fundamental misunderstanding of the nature of law and in the call for racial
realism that there is an alignment of the struggle for a new thinking about law
that repeat the gestures of the legal realists against the jurisprudence of the
old order. Judges political views have immense importance in the outcome of
cases as there is no such thing as neutral principle. InRegents of the University of California
v Bakke(court in deciding affirmative action
that would allow black candidates to enter the University of California) employ
a narrow definition of equality which ignored the social and economic cause of
advantages and held that no white students could be refused entrance to give
preference to black candidates.

LAW AND RACE
DISCRIMINATION

One
critical Scholar said discrimination is positional i.e. describes the
inter-relating and structured disadvantages in education, work, housing, health
care. The law tends to be blind to such
reality. Litigation on civil liberties tends to re-create this problem in terms
of an act of violation of anti-discrimination principles that can be remedied,
it neutralizes the inappropriate conduct of the perpetrator. Litigating civil
liberties issues has the effect to remove any sense of collective
responsibility for discrimination. Would it be possible for law to move to an
appreciation of ‘positional’ nature of discrimination? Such a shift would be
challenging to the legal construction and responsibility as individual fault
but risk antagonizing a vast majority reluctant or unwilling to perceive their
own complicity in discrimination. Anti-discrimination law has attempted to find
ways of breaking out of its formal restraints while trying to display adherence
to the form of the law.

RACE, RACISM AND
IDEOLOGY

CRT
borrows from CLS when it describes anti-discrimination law but also offers a
critique of the theories of ideologies CLS scholars put forward.It examines the differences between ideology
and theories.The work of Gabel and
Kennedy takes the notion that law is an ideological distortion of the
world.Ideas/practices of laws have to
be examined to see how they interface with wider social, economic and political
concerns.CLS take was that legal reform
can never transform social order because the law is already implicated. CLS use
trashing that was meantto reveal the
problems that lay under the surface of the law but it completely ignore the
role of race in its ideology. Frequent failure of anti-discrimination law was
put to the perspective by the whites that they would lose out to black interest
and they unite against these law. Ideology in this sense operates to create‘hegemony’
of interest.For example the labour
unions made up of immigrant white works excluded blacks. Civil liberty advances
are re-inscripted at a cultural level as black failure to adapt to the supposed
norms of white behavior hard work and discipline and demand for special
treatment show the continued failure of black community to match up to social
standards, hence their inferiority and the partisan one-sided nature of anti-discrimination
law.Though anti-discrimination law is
compromise it cannot be abandoned because of its transformational
potential.Whatever their shortcomings,
they have served to de-legitimise discrimination and this process is
continuing.

CRITICAL RACE THEORY
AND BRITISH RACISM

British
CRT approached racism as historical problem.The perception was not much the volume of black settlement but rather
its character and effects, especially threat to legal institutions. Immigration
is perceived as a threat to English constitutional values rather than
opportunity to create different history, institutional response.Law fails to create a legal notion of race of
what is shared in common by communities of Brutishness.This concept reflects the process of
decolonization, the history of colonization that created the empire in the
first place.

RACE, RACISM AND
BRITISH LAW: A SHORT HISTORY

In
the post-war period there was a consensus about the need to stem immigration.
It started with 1962 Immigrants Act
reducing immigration through issuing employment vouchers (for those link with
Britain either through being born in the country or having a passport issued
there). This indicates withdrawal from Empire and the Commonwealth British
Nationality Act – obligations towards commonwealth citizens being eclipsed by
Britain’s role in Europe.British
government was concerned about coloured but not white immigrants. There are tighter
legislature for blacks than white. The second Commonwealth Immigrants Act 1968
created even tighter legal definition of British Nationality.Settled coloured people and immigrants were
turned to suspect communities.Race relation Act
1965 did recognized the problem of discrimination.The Race Relations Act was seen as the state acting on
behalf of capitalists’ interests.The
thinking of the right-wing National Front or British National Party can be seen
as the logical extension, rather than departure from, official government
discourse on the need to police race. One of the reasons for the passage of 1968 Commonwealth Act
was the need to restrict entrance into the country of Kenyans of
Asian background. A similar concern was raised about Ugandan Asians, and they
were allowed into the country because of the necessity to bear a historical
burden. The logic works through into the 1971 Immigration Act with its separate spheres of
nationality i.e. partials and non-partials and when it came into effect in 1972
virtually ended all primary immigration.Despite the language of the 1976 Race Relations Act and developing case law,
the operative terms of the law were racists in the most crude of senses. The 1981 British
Nationality Act provides a further attempt to classify and
control.Definition of Nationality was
divided into British Citizenship, British Dependent Territories Citizenship and
British Overseas Citizenship. Linking immigration law with race relations
legislations allows these themes to be pursues.

THE RACE RELATIONS
ACTS

These
takes three phases1965 Act, expanded by
1968 Act and redefined by 1976 Act, more recently 2000 Act.Similar themes run through the largely
compromised act and leave racism largely intact.1965 Act passed by Labour was limited
measure, emphasis was inconciliation
and where this fail the matter is passed to AGF who may decide to litigate or
not. Political exigenciesand wider
ideological failure makes it an act without teeth.In the face of evidence of widespread and
violent racism, the first official acknowledgment was in 1981 in a report by
Home Office Racial Attacks. The report described endemic institutionalized
racism.If this was a second argument in
the foundation for the 1968 Act, it might indicate that lawmakers remained
ignorant of the dynamics of the law. The Race Relations Board gives reason for
extension and argues that the law gives support to those who do not wish to
discriminate but who feel compelled to do so by public pressure.The 1976 Act widen the scope of the
anti-discrimination law, but there were glaring omission such as the exclusion
of the police from the provisions of the Act.The concept of indirect discrimination falls far short of any meaningful
idea of institutional discrimination.

The
period since 1945 has seen substantial black and south Asian immigration into
Britain, the response to which has been a rise in racism and the simultaneous
passing of a series of law designed to reduce immigration (intent was plainly
discriminatory).The various Race
Relations Act however have proved ineffective at removing indirect
discrimination.

THE OFFICIAL
INQUIRIES

Stephen
Lawrence a young black student was murdered by a gang of racist white youths
while waiting at a bus stop in Eltham, South East London on April 22, 1993. No one was ever successfully prosecuted for
this crime.The report found no evidence
that racism had significantly contributed to the failures to make arrests.The report addressed complaints against
individual officers.

a)The
Scarman Report 1981: This is the report
into Brixton Disorder (Brixton an area of South London which has a relatively
high black population).Lord Scarman
rejected the allegation that British institutions were systematically involved
on racial discrimination as there is no conscious policy or public
decision.The explanation was of
‘unwitting’ racism. Occasional racism could be explained as immaturity of
certain officers.There was
acknowledgment that the problem is wider and structural.

b)The
Lawrence Inquiry:The limitation of racism was given in
evidence of how both the political complaints authority and police
appreciatedthe issue of discrimination,
described as a problem of rotten apples that let the side down.Scarman tended to be used to support that
racial discrimination was not a widespread problem in policing. There was a
reluctance by the police to come to term with the need to police a multi-racial
society, it is attached to a notion of unarmed and consensual policing .Most worryingly the culture of policing does
not encourage a critical self-understanding that would make prejudice easier to
identify and to challenge. It addresses the failures of the Lawrence
investigation, disparity in the numbers of black people stopped and searched by
the police, under reporting of racial incidents.The report Winning the Race shows that before
1998, not a single office had received training in racism awareness. The
Lawrence inquiry shows that these attitudes are not longer acceptable.In the word of Sir John Woodorck, the police
remain a 19th century institution, a mechanism set up to protect the
affluent from what the Victorians described as dangerous classes.

CRITICAL RACE THEORY
AND POST-COLONIALISM

Colonialism
is foreign rule. Its primary task was to make this rule effective, to assure
its long duration, to end or neutralize opposition and to make possible
European activity in the colony. It is economic exploitation between ruler and
the ruled. It involves three phases,attempts to exploit the resource and manpower of south America and
Africa by European powers.Direct
appropriation began in the nineteenth century and later replaced by a treatise
and trading arrangement and the third movement is that of more formal colonial
rules of the later 1900s.This latter
phase was concluded and refined by the withdrawal from empire and the
independence of the new African states.The law was a legitimization of European rule and a site of struggle and
resistance.Nigeria is a country that
will be brought into being by the law.Chief
Obafemi Awolowo, a Nigerian nationalist, invoked constitutional values and linking them
to his imagination of Nigeria, simultaneously paying homage to a common law
tradition and accusing it of failing to live to its rhetoric.The law was used a weapon for exploiting
Nigeria resources and its people. Awolowo accuses the British of denying
Nigeria legal and economic sovereignty.The rule of law is also a feature of Awolowo’s vision.The independent constitution was a flawed
document.The flaws must be seen
alongside a great democratic potential and commitment to human rights and rule
of law that are also a feature of Awolowo’s vision.

a)Post colonialism and
the philosophy of law:There is an alliance
between jurisprudence and colonialism.Works like Henry Maine’s Ancient Law (2002) show clearly the
sense in which jurisprudence was informed by the anthropological, philosophical
and historical suppositions of the human sciences, especially the distinction
between ‘savage’ and the ‘civilised’ can be glimpsed within the central line of
legal thinking that runs from Hobbes to Hart.

b)Law and the savage: This is the creation
of Western, European identity created in opposition to all those features which
it is not (Fitzpatrick).Savage as an
object of nature will act upon, civilize and reform made subject to reason’s of
sovereign power. These presumption fed into the mindset responsible for the
establishment and perpetuation of both slavery and the colonial project.The colonized and exploited territories were
seen as materials for the West (direct purchase of slave and colonial
orders.By 1800s the West had brought
nearly a third of world into its sphere of exploitation. Opposition of law to
savagery through foundations of jurisprudence. Thomas Hobbes ‘vision of the
chaotic state of nature is informed by structuring separation of savage from
organized and regulated culture.Austin’s definition of laws as the command of the sovereign to which
political inferiors owe habitual obedience is itself by Hobbes Leviathan. Desirability
of law is protection from the disorder of savage nature.A solitary savage could not be a social man
because he would notappreciate the
necessity of communal living and hence governmentThe savage mind is ‘unfinished’ certain
notions essential for society.Austin
makes a link between this savage stage of nature and the unruly and restless
poor, who do not appreciate the need for law. Colonialism was fortified by
sense of progress, of the need to civilize those who were savage.The likes of Robert Knox or Herbert Spencer, who drew on Charles
Darwin to create accounts of the superiority of the white race.Fitzjames Stephenswrote that English Law ‘is in fact the sum and substance of what we have
to teach them.It so to speak the gospel
of the English, and it is a compulsory gospel which admits of no dissent and no
disobedience.

TRACING THESE THEMES
IN CONTEMPORARY JURISPRUDENCE

Hart
wrote that unless law has a minimum of moral content, men as they are would
have no reason obeying any voluntary rules. His vision of savage society as
that which is unregulated, anarchic and merely awaits the coming of rational
legal order.Primitive law is inflexible
and rigid and therefore impossible to change.

CONCLUSION

Critical
Race Theory (CRT) grew up in America as a response to the failure of the
anti-discrimination laws to achieve any real sense of social advantage for the
black community. The very recognition of slavery in American Constitutional
government (Bell 1995), the drafting of the independence constitution in 1787,
Hayes-Tilden compromise of 1877- ending
reconstruction in the south.Litigation
engaged by National Association for the Advancement of Colored People (NAACP)
is symbolic. In Regents
of the University of California v Bakke(court in deciding affirmative action that would allow black
candidates to enter the University of California) employ a narrow definition of
equality which ignored the social and economic cause of advantages and held
that no white students could be refused entrance to give preference to black
candidates. One critical scholar said discrimination is positional i.e.
describes the inter-relating and structured disadvantages in education, work,
housing, health ca

Conclusively,
CRT can be seen as intellectual movement that studies the response of law to
racism. CRT is interested more broadly in racism as a social and political
problem.Postcolonial jurisprudence seeks
to create an account of the issue of race in legal philosophy and pointed out
to the classical jurisprudential test with an eye on their silences or evasions
of the issue of race. CRT grows out of concern with race and racism in the USA,
the latter has been more focused on issues of European colonialism and its
aftermath.

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